Nunn v. Fenswick CA1/5

Filed 5/14/14 Nunn v. Fenswick CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

WESLEY I. NUNN, Plaintiff and Appellant, A139583 v. JENNIFER M. FENSWICK, (Del Norte County Super. Ct. No. CVUJ 09-1323) Defendant and Respondent.

This case is the latest chapter in a long history of litigation relating to the disposition of real property following the dissolution of a romantic relationship between plaintiff and appellant Wesley I. Nunn and defendant and respondent Jennifer M. Fenswick. The present case alleges causes of action for malicious prosecution and abuse of process; respondent defaulted and the trial court entered a default judgment that awarded appellant only his costs of suit. We reverse and remand for reconsideration of appellant’s request for a default judgment. BACKGROUND In December 2012, appellant filed a third amended complaint alleging causes of action for malicious prosecution and abuse of process. Among other things, appellant alleged a lawsuit commenced by respondent in 2005 and terminated by judgment in April 2009 was brought maliciously and without probable cause. The judgment was in favor of respondent on her complaint for a small sum, but it was also in favor of appellant on his

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cross-complaint for a somewhat larger sum. Respondent failed to answer the complaint and in April 2013 appellant requested entry of default against respondent and a judgment in the amount of $142,450. The trial court directed appellant to submit a declaration in support of the requested judgment pursuant to Code of Civil Procedure section 585, subdivision (d).1 Appellant submitted a declaration averring he paid $120,000 in attorney fees in defense of respondent’s action, he incurred damages of $7,000 in the loss of value of stock due to injunctions obtained by respondent that prevented him from selling the stock, he is due damages in the amount of $15,000 for loss of enjoyment of life, and he paid $450 to file his action and serve respondent. On June 21, 2013, the trial court ruled as follows: “The Court has reviewed the Declaration of [appellant] in support of the proposed default judgment. Based upon the information submitted, [appellant’s] request for damages is denied. The issue of attorney’s fees was previously decided in Case No. CVUJ 05-1431, as set forth in the Judgment filed April 6, 2009.” The trial court entered judgment in appellant’s favor, awarding him only $450 for his costs of suit. This appeal followed.2 Appellant appears in pro per; respondent did not file a brief on appeal. DISCUSSION Appellant contends, among other things, the trial court erred in denying him damages on his malicious prosecution claim in reliance on the denial of attorney fees in